Those who criticise the Aarushi verdict cast aside decisions of eminent judges who believed that a conviction did not always require “conclusive evidence” or proof “beyond reasonable doubt.”

“Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice.” (Lord Denning in Miller vs Minister of Pensions — 1947)

Although Lord Denning, the iconic English judge, gave his ruling 60 years ago on the proof required in civil litigation, the standard laid down by him then has begun to impact criminal proceedings as well. This is in the context of growing complexity of modern crime that eludes easy detection. There cannot be a more appropriate occasion than now to recall his words of pragmatism.

The long awaited Ghaziabad (Uttar Pradesh) Special Court judgment in the sensational May 15, 2008 Aarushi murder case is out. The Talwars, parents of the unfortunate 14-year-old girl, have been convicted for murdering their only child and their domestic help, Hemraj, and also causing disappearance of related evidence. They will undergo life sentence as well as five years of rigorous imprisonment on the two counts of charge. The father, Rajesh Talwar, has been additionally found guilty of filing a false first information report.

Inhuman crime

Immediate relatives of the dentist couple and the defence lawyer have described the conviction as a miscarriage of justice and expressed their resolve to take it on appeal. In recent memory, no other case of murder has possibly received greater media publicity. And rightly so because the crime was inhuman beyond belief and shrouded in deep mystery for a long time.

The Talwars certainly received painfully adverse media attention. It would be naïve for anybody to claim that Judge Shyam Lal, who is retiring shortly and has a reputation for integrity, was totally unaffected by this. A careful reading of the 210-page order does not, however, suggest that he succumbed to any manipulative press or television story.

I am impressed with his logic in arriving at the tragic conclusion that the parents had, in fact, murdered their only child and a living-in domestic servant. The only possible irritant in the order is that citations are far too many for a lay member of the public to absorb. We should remember that his constituency is not us, but the two higher courts of the land, which could rip his order apart if the matter went up before them on appeal. What I am most impressed with is his practical and honest approach to the problem of filling in the glaring gaps in the prosecution story.

The entire case is built on a few clinching circumstances. There are no eyewitnesses, something true of a few other sensational cases the world over. But then, when the evidence put forward on the basis of facts immediately surrounding a crime and the responses of the principal actors to it are solid, how can you ignore such evidence? This is the judge’s stand in a case which could well have been shut before any trial if only the CBI’s closure report (after two of its teams had investigated the case) had been accepted. It is a matter of conjecture whether Judge Lal’s predecessor, who first heard the case, would have acted so if the Talwars had not protested at the insinuations against them in that report.

This is a lesson for many investigating agencies. If they cannot arrive at definite conclusions of guilt or innocence, and therefore opt for a closure, they should simultaneously be prepared for an intrepid magistrate/judge who could reject their stand and take the next logical step of ordering a regular trial on the same facts. I am happy that in this respect, the CBI rose to the occasion and was ably aided by an industrious Special Prosecutor.

Crucial points

In the ultimate analysis, certain crucial facts went against the Talwars. There is unassailable evidence (corroborated by the driver who was the last person to leave the house on the fateful night) that only the doctor couple and the two deceased were in the house (a modest 1300-sqft apartment with a terrace) when the lights were switched off. There was no evidence of any forcible entry into the house between the night and when the domestic servant, Bharti, turned up for work the next morning. Also, when the police arrived at the scene after being alerted in the morning, Aarushi’s body and her bed had been nearly thoroughly cleaned up. No perpetrator of crime would conceivably ever do this. Proof of the Internet connection in the house having been accessed most of the night put paid to the Talwars’ claim that they were fast asleep right through and hence could not hear the movements of a possible intruder who, in their view, had committed the crime. (I look upon this as a smart piece of investigation that greatly undermined the credibility of the accused.)

Domestic servant Bharti who arrived in the morning did not find the mother of the girl in any grief or complaining about the occurrence, although by that time, Aarushi’s death had been well established. This was unnatural to say the least. Finally, there was no evidence that Aarushi’s bedroom which, once closed, could be unlocked only from outside, had been broken into, disproving the mother’s version that she locked the room from outside and took hold of the key when she retired to bed in the adjoining room the previous night.

Judge Shyam Lal derives support from many Supreme Court decisions. His endeavour has been to emphasise that the absence of direct evidence is not a handicap to establishing facts against a suspect. Nor was it always necessary to pinpoint a motive for the offence under examination. He rightly points out how, in the history of crime across the globe, many judges confronted this phenomenon and still went ahead to convict those arraigned. It is significant however that Judge Lal endorsed the CBI’s position that this was, in all probability, an instance of honour killing. This is a point that many critics of the judgment have missed.

In describing the Talwars’ conviction as grossly unfair, the defence team has been vociferous that the judge erred in placing undue reliance on circumstantial evidence. This ignores many landmark rulings in the history of jurisprudence as it has evolved. Those who are exercised over the Aarushi decision conveniently cast aside many past decisions of eminent judges who were unswerving in their belief that a conviction, even in criminal cases, did not always require either “conclusive evidence” or proof “beyond reasonable doubt.” In their view, criminal conviction could rest on strong circumstantial evidence, as long as a prudent man would believe it to be credible, and that no conclusion other than guilt could be arrived at from the circumstances cited. Of course, there is the requirement that the chain on which the prosecution relies should be so complete that no human agency could have unearthed anything more than that projected and which could throw even a reasonable doubt on the presumption of guilt. The only stipulation is that such presumption should rest on facts, not mere conjectures. This is a practical view of human affairs taken by the English criminal jurisprudence over the ages, and which we have inherited. Judge Lal rightly draws comfort from a 1973 Supreme Court judgment (Bobade and another v State of Maharashtra), which highlighted the social perspective that courts should keep in sight. The Supreme Court on this occasion said rather eloquently: “The dangers of exaggerated devotion to the rule of benefit of doubt … demand especial emphasis in the contemporary context of escalating crime and escape.”

The logic of this warning applies without reserve to the Aarushi case. One must compliment Judge Lal for his clarity, courage and forthrightness. I am sure many in his fraternity are watching and will learn from his example by standing up to calculated attempts to derail the course of justice, especially when people in high places are arraigned.

I feel it would be unfair to stop with such a clinical and cold analysis of a judgment that would be discussed for many years to come. I feel I should dwell a little on the misfortune of a couple, who not only lost their only child but have also to languish in jail for most of their remaining lives. My heart goes out to them. However heinous their acts may have been, they are not common criminals to be hounded or despised. There is already information that they are going to be usefully occupied in prison: the husband treating inmates who need dental attention and the wife imparting education. In this process, it is hoped they will imbibe values which perhaps did not govern their lives until they erred grievously five years ago.

(The writer is a former CBI Director)

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